Judge: Mitchell L. Beckloff, Case: 22STCV26165, Date: 2023-08-04 Tentative Ruling
Case Number: 22STCV26165 Hearing Date: August 4, 2023 Dept: 86
U.S. BANK N.A. v. WASHINGTON
Case Number: 22STCV26165
Hearing Date: August 4, 2023
[Tentative] ORDER
DENYING APPLICATION FOR WRIT OF POSSESSION
Plaintiff, U.S. Bank National Association, moves
for a writ of possession against Defendant, Roderick N. Washington, as to a 2019
Jeep Wrangler Unli, VIN: 1C4HJXFN4KW601259 (the Vehicle).
RELEVANT PROCEDURAL HISTORY
On August 12, 2022, Plaintiff filed a complaint
against Defendant for claim and delivery.
On September 1, 2022, Plaintiff filed proof of
service of the summons and complaint on Defendant by substitute service.
On October 11, 2022, the court entered
Defendant’s default.
On November 1, 2022, Plaintiff requested entry of
court judgment re: possession against a defaulted defendant. The court did not enter judgment.
On February 10, 2023, the court instructed
Plaintiff to file an application for writ of possession in a writs and receiver
department or, alternatively, to file a trial brief “demonstrating that the
approach now being used for replevin is a proper approach in this case.”
On May 18, 2023, Plaintiff filed its application
for writ of possession. Plaintiff has
filed a proof of service of the application and notice of hearing on Defendant. (See Decl. of Mailing attached to Notice of
Application.)
SUMMARY OF
APPLICABLE LAW
“Upon the
filing of the complaint or at any time thereafter, the plaintiff may apply
pursuant to this chapter for a writ of possession by filing a written application
for the writ with the court in which the action is brought.” (Code Civ. Proc., § 512.010, subd. (a).)
Pursuant to
Code of Civil Procedure section 512.010, subdivision (b), the application must
be submitted under oath and include:
(1) A showing of the basis of the plaintiff's claim and that the
plaintiff is entitled to possession of the property claimed. If the basis of
the plaintiff's claim is a written instrument, a copy of the instrument shall
be attached.
(2) A showing that the property is wrongfully detained by the
defendant, of the manner in which the defendant came into possession of the
property, and, according to the best knowledge, information, and belief of the
plaintiff, of the reason for the detention.
(3) A particular description of the property and a statement of its
value.
(4) A statement, according to the best knowledge, information, and
belief of the plaintiff, of the location of the property and, if the property,
or some part of it, is within a private place which may have to be entered to
take possession, a showing that there is probable cause to believe that such
property is located there.
(5) A statement that the property has not been taken for a tax,
assessment, or fine, pursuant to a statute; or seized under an execution
against the property of the plaintiff; or, if so seized, that it is by statute
exempt from such seizure.
“The writ
will be issued if the court finds that the plaintiff's claim is probably valid
and the other requirements for issuing the writ are established.” (Code Civ. Proc., § 512.040, subd. (b).) “A claim has ‘probable validity’ where it is
more likely than not that the plaintiff will obtain a judgment against the
defendant on that claim.” (Code Civ.
Proc., § 511.090.)
Prior to the
issuance of a writ of possession, the plaintiff must file an undertaking “in an
amount not less than twice the value of the defendant's interest in the
property or in a greater amount.” (Code
Civ. Proc., § 515.010, subd. (a).)
ANALYSIS
No Memorandum of Points and Authorities
Plaintiff has not submitted a memorandum
of points and authorities. Pursuant to
the Rules of Court, a memorandum of points and authorities is required for
pre-judgment application for writ of possession. (Cal. Rules of Court (CRC), Rules 3.1103,
subd. (a)(1); 3.1112, subd. (a)(3); 3.1113, subd. (a); and 3.1114.) “The court may construe the absence of a
memorandum as an admission that the motion . . . is not meritorious and cause
for its denial . . . .” (Rule 3.1113,
subd. (a).) The court denies the application for failure to
file a memorandum of points and authorities.
Probable
Cause re: Location of the Vehicle
Pursuant to Code
of Civil Procedure section 512.010, subdivision (b)(4), the application must
include:
(4) A statement, according to the best knowledge, information, and
belief of the plaintiff, of the location of the property and, if the property,
or some part of it, is within a private place which may have to be entered to
take possession, a showing that there is probable cause to believe that such
property is located there.
The
application seeks an order permitting a levying officer to enter private
property and take possession of the Vehicle. Therefore, Plaintiff must
establish “probable cause” to believe that the Vehicle is located at the property. (See Code Civ. Proc., §§ 512.010, subd. (b)(4),
512.080.)
In the
proposed order, Plaintiff seeks a writ of possession authorizing entry into the
four private places to take possession of the Vehicle:
·
225 East 9th Street, #108, Los Angeles,
CA 90018-1702
·
3469 Westmount Avenue, View Park, CA
90043
·
3183 Wilshire Blvd. Ste 196 Los Angeles,
CA 91387
·
28414 Winterdale Drive, Canyon Country,
CA 91387
Plaintiff’s
representative attests “Plaintiff
attempted service at the address indicated on the Contract, which is listed as
225 East 9th Street, #108, Los Angeles, California 90015-1702; however, it was
discovered that this address is associated with a post-office box.” (Armistead Decl. ¶ 14.) Despite listing the
address as a location for the Vehicle, Plaintiff concedes it “has no reason to
believe that the Vehicle is located there.”
(Ibid.)
As to the other three locations offered
as a possible location for the Vehicle, Plaintiff’s representative declares:
“There are three other addresses that are part of Plaintiff’s records and are
as follows: [a.] 3459 Westmount Avenue View Park, California 90043 [b.] 3183
Wilshire Blvd. Ste 196 Los Angeles, California 90010 [c.] 28414 Winterdale Dr.
Canyon Country, California 91387. Based on Plaintiff’s best knowledge,
information, and belief, the Vehicle is likely to be found at one of the
foregoing addresses.” (Id. ¶ 14.)
This evidence does not establish probable
cause to believe the Vehicle is located at one of the three other stated
locations. Plaintiff does not submit
evidence that process servers or other agents spotted the Vehicle at any of the
three locations; or that Plaintiff has any other current information suggesting
that the Vehicles may be found at those locations. Plaintiff’s proof of service of summons
states Defendant was served with the summons and complaint at an entirely
different location, 3818 Crenshaw Blvd. #250.
The documentary evidence submitted by Plaintiff with the application shows
Defendant used the 225 E. 9th Streeet address, a post-office box. (Armistead Decl. Exh. 1-3.) Plaintiff’s representative gives no explanation
of where the three other addresses are found in “Plaintiff’s records” and why
Plaintiff contends that such records establish probable cause to believe the
Vehicle is currently located at those addresses. While Plaintiff submitted proof of service
stating it served the application for writ of possession by mail at all
of the three stated addresses, as well as 3818 Crenshaw Blvd. #250, the proof
of service is not evidence of probable cause regarding the Vehicle’s
location. (See Decl. of
Mailing attached to Notice of Application.)
These issues also should
have been addressed in the required memorandum of points and authorities.
CONCLUSION
The application is DENIED WITHOUT PREJUDICE.
Plaintiff has failed to file a memorandum of points and authorities in support
of its application. Plaintiff has also not provide sufficient evidence
concerning the location of the Vehicle.
IT IS SO ORDERED.
August 4, 2023 _______________________________
Hon. Mitchell Beckloff
Judge of the Superior Court